No. 13771 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THEODORE A. SCHUMAN et al., 

Petitioners and Appellants, 

THE STUDY COMMISSION OF YELLOWSTONE 

COUNTY et al., 

Respondents and Respondents. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Bernard W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellants: 

Jones, Olsen and Christensen, Billings, Montana 

Paul G. Olsen argued, Billings, Montana 

For Respondents: 

Honorable Mike Greely, Attorney General, Helena 

Helena, Montana 

Moulton, Bellingham, Longo and Mather, Billings, 

Montana 

William H. Bellingham argued, Eillings, Montana 

Submitted: September 30, 1977 

CPY . "- .- ?97Q Filed: 
Honorable Robert M. Holter, District Judge, sitting in place 

of Mr. Chief Justice Haswell, delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court, 

Yellowstone County, affirming and declaring valid the 

September 14, 1976, City of Billings and Yellowstone County 

alternative form of government elections. 

Pursuant to sections 16-5101 to 16-5115, R.C.P1. 1947, 

the Yellowstone County Board of County Commissioners established the Yellowstone County Study Commission (County Study 

Commission) and the Billings Municipal Council established 

the Billings Study Commission (City Study Commission). Each 

study commission held in excess of 50 public meetings to 

examine both present and alternative forms of city and 

county governments. They invited public questions and 

suggestions. In addition, the county study cornmission held 

five public hearings and the city study commission held four 

public hearings from Play, 1975 to June, 1976, to elicit 

preferences as to characteristics of local government, views 

on county-city government consolidation, and reactions to 

the study commissions' tentative reports. 

Each study commission presented a final report to the 

public. The City Study Commission distributed approximately 

23,000 copies of its final report. This report included a 

summary of the commission's findings, key provisions of the 

charter form of government which the City Study Commission 

proposed as an alternative to the existing city government, 

the entire proposed charter, a comparison between the then 

existing form of city government and the proposed charter 

form, certificates establishing the then existing plan of 

government and the proposed charter form, and a form of 

official ballot. 
 he County Study Commission distributed approximately 

26,000 similar final reports offering a proposed coinmissioneradministrator charter form of county government as an alternative to the existing traditional county commission form. 

The city voters on September 14, 1976, voted 7,238 to 

6,268 in favor of the proposed charter form of government to 

replace the mayor-council form of government. The county 

electors on that day, by a 9,720 to 8,776 vote, rejected the 

proposed charter form of county government and retained the 

county comission form. 

More than 10 qualified electors of both the city and 

county filed a petition for judicial review on September 30, 

1976, in the District Court, Yellowstone County, pursuant to 

section 16-5115.15, R.C.M. 1947. The electors contested the 

validity of the elections and claimed section 16-5115.1, 

R.C.M. 1947, was unconstitutional. These issues were tried 

by the District Court which made findings of fact and conclusions 

of law affirming that the elections of September 14, 1976, 

and the proceedings leading thereto were valid, and granted 

judgment to that effect. It is from the findings, conclusions 

and judgment that this appeal is taken. 

This Court has repeatedly stated it will not overturn 

findings of fact and conclusions of law if supported by 

substantial evidence and by the law. Evidence will be 

viewed in the light most favorable to the prevailing party. 

Rule 52, M.R.Civ.P.; Luppold v. Lewis, (1977), Mont . I 

563 P.2d 538, 34 St.Rep. 227; Morgen & Oswood Construction 

Co. v. Big Sky of Montana, Inc. (1976), Mont . , 557 

P.2d 1017, 33 St.Rep. 1121. The judgment of the ~istrict 

Court is presumed to be correct and will be upheld unless 

clearly shown to be erroneous; the burden of such showing is 

upon the appellant. Kamp v. First National Bank and Trust 

Co., (1973), 161 Mont. 103, 504 P.2d 987. 

We find the findings of fact and conclusions of law 

Of the ~i~trict Court are supported by substantial evidence- 
Appellants next claim the city and county voters were 

not given the choice between the established form of government and an alternative form as mandated by Art. XI, Section 

9(1), 1972 Montana Constitution. Instead, appellants allege 

the choice offered was between two alternative forms of 

government. It is obvious that in each case the city and 

county study commissions presented charter forms of government which differed in basic composition from any then 

existing form. The crucial question is whether the established 

(whether called "present" or "existing") forms of government 

were offered to the voters at all. The District Court found 

they were. 

The ballots presented to the voters were in the following forms: 

Billings City Form Yellowstone County Form 

F-------- ----------- --- 7 ------___ -- 

t - i 

1 

. - 

-. 

- - . * , -_ I -. .- - . .. - I' i. I 

I 

I BALOT O$ALTER;MTWE , I BALLOT O!i ALTERiiBTIETE ) 

I 

I FOf _ _- h! ..- OF . - GOVER!lMEIT __ __. 

f FORFA Of LOCAL GOYEBi4?AEIIT 

I - I - 

( I3 the proposed form of 

I majority of the votes cast on the question. 

1 tion also fails. If the proposed form is 

I option requires only a plurality of I option for adoption. . - 

I -. -1. - - . I PLEASE V~YE d~ I Vo16for Ons. - . I 1. D - - 1 I 1 . Vote for One. _ I FOR the zdoption of the self-government a -- 1 1 

I charter proposed in the report of the Ye[- 

For adoption of the charter form of city govern- 1 bwstone County Study Commission. I 

ment proposed in the report of the Billings City I t- - I 

i - Study Commission. I I I 

FOR the existing county commission I 

I form of county government 

1 I I For the present mayor-counci~form of city I 

I I government 

2. 

I I vote for ~na. I Sub-option to be included in the new form of . , 2. I 9 I I government, if it is adopted. Yellowstone County 

Vote for One I / elections: . * I 

I 

sub-option to be included in the proposed charter form I I 

of c~ty government, it the proposed charter form ot city 1 1 

I Shall be conducted on a partisan basis. - II 

government is adopted. Article Ill. Sect~on 3.06, Elec- 1 - 1. 

tion. The procedure tor the nomination and electfon of 1 I ' 1 

a!l city officials shall be as prescribed by state law. I I _ Shall be conducted on a non-paclsan basis. 1 

- - I I I -, 

I 

1 For Partisan elections. - I I I 

I I L,-,,,,,,,,,----------J 

1 I 

I For on-partisan elections. * ' _ i 

I I .----,,,,,-- -----------J 
The ballot form was adopted so the voters would be clearly 

required to vote positively, that is, vote 

- 

for their choice 

and not against one of the other forms. That in the city 

election the voters adopted a new governmental form, while 

in the county voters retained the old form, is the strongest 

evidence the voters were fully informed and not confused by 

the ballots nor the issues. 

But, appellants argue, the legislature in 1975 changed 

the form from "present" to "existing" local government by 

the adoption of Chapter 106, Laws 1975, entitled "AN ACT TO 

CREATE A NEW TITLE IN THE REVISED CODES OF MONTANA DEALING 

WITH LOCAL GOVERNMENTv. The title created by Chapter 106 is 

Title 47A of the Revised Codes of Montana. Appellants claim 

that section 47A-3-202 et seq., R.C.M. 1947, varied the 

forms of local government from those under Titles 11 and 16, 

R.C.M. 1947. 

Until 1975, local governments developed through many 

years of growth and statutory change. There was no single 

government code as such; rather, the various provisions 

under which local governments operated were scattered throughout the whole Montana Code, but were mainly found in Titles 

11 and 16. Indeed, Chapter 106, Laws 1975, is prefaced by 

this declaration: 

"WHEREAS, the existing state statutes governing 

local government are confused, contradictory, 

scattered and repetitive, resulting in delay or 

inaction in response to pressing problems * * *." 

That was the situation when Title 47A was enacted. The 

trial court found, and we concur, that the relevant portions 

of Section 47A-3-202 et seq. contain the same essential 

characteristics of form of government as were presented 

under the former codification. At most, it is a recodification. Therefore, it follows that the constitutional 
mandates were observed and an alternative and the established 

(whether called "present" or "existing") forms were presented 

to the electors for their choice. 

- 

Lastly, appellants argue that section 16-6115.1, R.C.M. 

1947 compels the selection of an "existing" form of government 

and thereby violates the 1972 Montana Constitution: 

Art. XI, Sections 3(1) and 9(1), 1972 Montana Constitution: 

"Section 3(1). The legislature shall provide 

nethods for governing local government units and 

procedures for incorporating, classifying, merging, 

consolidating, and dissolving such units and 

altering their boundaries. The legislature shall 

provide such optional or alternative forms of 

government that each unit or combination of units 

may - adopt, amend, or abandon an optional or alternative form by a majority of those voting on the 

question." (Emphasis added.) 

"Section 9 (1) . The legislature shall, within four 

years of the ratification of this constitution, 

provide procedures requiring each local government unit or combination of units to review its 

structure and submit one alternative form of government to the qualified electors at the next general 

or special election." (Emphasis added.) 

Art. 11, Sections 1 and 2, 1972 Montana Constitution: 

"Section 1. All political power is vested in 

and derived from the people. All government of 

right originates with the people, is founded upon 

their will only, and is instituted solely for 

the good of the whole." 

"Section 2. The people have the exclusive right 

of governing themselves as a free, sovereign and 

independent state. They may alter or abolish the 

constitution and form of government whenever they 

deem it necessary." 

Appellants claim this is true because section 16-5115.1 

states that unless the electors chose an alternative form of 

government, then their "existing" form of government shall be 

as defined by section 16-5115.1. In this manner appellants 

claim the study commissions and the legislature locked the 

citizens into a situation which prevented them from exercising 

their rights. 

We preface discussion with some of the rules which 
apply generally to all constitutional inquiry. In Board of 

Regents of Higher Education v. Judge, (1975), 168 Mont. 433, 

443, 543 P.2d 1323, the Court held: 

"' * * * the Constitution must receive a broad 

and liberal interpretation consistent with the purpose 

of the framers and the people in adopting it, 

that it may serve the needs of a growing state; 

the proper interpretation of any constitutional 

provision requires us to remember that it is a 

part of the organic law--organic not only in the 

sense that it is fundamental, but also in the 

sense that it is a living thing designed to meet 

the needs of a progressive society, amid all the 

detail changes to which a progressive society 

is subject. '" 

Nor can we omit the wisdom of Justice Oliver Wendell 

Holmes when he wrote: 

"* * * the interpretation of constitutional 

principles must not be too literal. We 

must remember that the machinery of government would not work if it were not allowed 

a little play in its joints.* * * " Bain Peanut 

Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 

75 L.Ed. 482. 

In Martien v. Porter, (1923), 68 Mont. 450, 464, 219 P. 

817, this Court held: 

"We enter upon a consideration of this 

case, bearing in mind a rule of construction 

dictated by reason and sanctioned by authority 

and long usage, that whenever an Act of the 

legislative assembly is assailed as unconstitutional, the question presented to the court 

is not whether it is possible to condemn but 

whether it is possible to uphold. 

"In the early case of Brown v. Maryland, 12 

Wheat 419, 6 L.Ed. 678, * * * Chief Justice 

Marshall declared: 

"'It has been truly said, that the presumption 

is in favor of every legislative Act, and that 

the whole burden of proof lies on him who declares its unconstitutionality.' It has been 

invariably held by this court that the constitutionality of an Act of the legislature will 

be held unless its unconstitutionality appears 

beyond - a reasonable doubt." (Emphasis added.) 

These rules were recently restated by this Court but 

with a somewhat more restrictive burden for the proponent: 
"We cominence inquiry into the constitutional 

questions with the well-settled rule that when the 

constitutionality of a statute is under scrutiny, 

the statute is presumed to be constitutional and 

the party attacking it has the burden of proving 

its invalidity. * * * This presumption of 

validity applies to all legislative enactments and 

it is the duty of the court to resolve 

all conceivable doubts in favor of validity 

whenever possible." (Emphasis added.) Reeves 

v. Ille Electric Co., (1976), Mont. I 

551 P.2d 647, 650, 33 St.Rep. 542. 

542. We have earlier in this opinion held sections 47A-3- 

203, et seq., to be codifications of the various forms of 

local government utilized under old Titles 11 and 16, Revised 

Codes of Montana. We now hold section 16-5115.1, 2.C.M. 

1947, to be of the same vein; it merely is the "road map" by 

which one finds his way into Title 47A. Nor does this 

holding contravene any rights of the citizens under Art. 11, 

Sections 1 and 2, by telling them "this is it". Art. XI, 

Section 3(1) fixes responsibility upon the legislature to 

provide optional or alternative forms of government; certainly it can be implied that this includes the power of 

defining whatever forms they were to make such alternatives 

to. This adds to, rather than detracts from, the rights of 

the people to choose their own governments since they now 

have a definition of the system. 

Moreover, the 1972 Montana Constitution recognizes 

changing conditions in society requiring orderly and unhurried revision from time to time of its governmental systems. 

That is the real spirit of it; to stifle that spirit by too 

literally interpreting legislation thereunder is not in the 

interests of society. Fundamental purposes must be the 

objective and reasonableness the watchword. 

It is then to the end result of all of the proceedings 

of the legislature, study commissions and elections to which 
we must address ourselves. Through the legislative enactments, governments were reviewed and their forms defined; 

alternate forms were studied, and one alternate selected 

which seemed best suited to the study commissions and the 

people. The people were afforded reasonable choices between 

the established form and an alternative form and made their 

selections. Now to say the whole proceeding is unconstitutional because of some vague claim that there might be some 

difference between the old and newer statutory definitions 

or that those definitions coerce selection, leads to an 

absurd result. Certainly constitutional construction should 

not reach such a result. State ex rel. Ronish v. School 

Dist. No. 1 of Fergus County, (1960), 136 Mont. 453, 348 

We hold the classification of the existing form of 

government under section 16-5515.1, R.C.M. 1947, not to be 

an imposition of any particular form of government upon a 

local body, but instead to be compliance with the constitutional mandates of Art. X 

We affirm the decision 

Hon. Robert M. Holter, District 

,/' Judge, sitting in place of Mr. 

.I/ Justice Frank I. Haswell. /' 

i 

We conc : .d,/f%i, 

/f$d. Jack D. ~hanstrom, sitting 

n place of Mr. Justice John C. 'P Harrison